SDCV v Director-General of Security

Link copied
Case Copied 80 min read

FEDERAL COURT OF AUSTRALIA

SDCV v Director-General of Security [2021] FCAFC 51  

Appeal from: SDCV and Director-General of Security [2019] AATA 6112 (2 December 2019); SDCV and Director-General of Security, closed reasons of the AATA, 2 December 2019
File number: NSD 2144 of 2019
Judgment of: RARES, BROMWICH AND ABRAHAM JJ
Date of judgment: 9 April 2021
Date of further orders: 28 April 2021
Catchwords:

CONSTITUTIONAL LAW – judicial power of the Commonwealth – challenge to the constitutional validity of s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) – whether s 46(2) of the AAT Act requires the Court to act in a manner that is procedurally unfair – where the applicant appeals on a question of law – where s 46(2) of the AAT Act is to be read in the context of the legislative regime as a whole – whether a practical injustice results – held: s 46(2) of the AAT Act is valid

ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm an adverse security assessment (ASA) – where ASA determined that the applicant supported politically motivated violence and the Islamic State of Iraq and the Levant – where ASA determined that the applicant employed communications security tradecraft practices while engaging with individuals of security concern – where both open and closed evidence, submissions and reasons furnished which the applicant was prohibited from knowing or considering – held: the Tribunal did not apply an incorrect construction of phrase “directly or indirectly a risk to security” within the meaning of s 4 of the Australian Security Intelligence Organisation Act1979 (Cth) – obligation to give reasons under s 43(2) of the AAT Act still applied where a direction under s 43AAA(5) of the AAT Act was in force but could not be read to require closed reasons to be produced – the Tribunal did not err by way of failure to make findings in concluding that the open evidence alone could not lead to a conclusion on whether the ASA was justified and in not making any positive findings on that evidence – there was no denial of procedural fairness by way of a failure to give the applicant sufficient information to make meaningful submissions as the applicant was able to answer the proposition put to him – there was no denial of procedural fairness having regard to the legislative context – it was open to the Tribunal to reach the decision based on the open and closed evidence – application dismissed

Legislation:

Constitution s 75(v)

Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 36D, 39A, 39B, 43, 43AAA, 44, 46

Australian Security Intelligence Organisation Act 1979 (Cth) ss 8, 7, 31, 35, 54

Crimes (Aviation) Act 1991 (Cth)

Criminal Code (Cth) s 102.1

Criminal Code (Terrorist Organisations – Islamic State) Regulations 2020 (Cth) reg 591

Evidence Act 1995 (Cth) s 130

Federal Court of Australia Act 1976 (Cth) ss 17, 37AE–37AL

Judiciary Act

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read SDCV v Director-General of Security and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FCAFC 51
Decision Date

CaseChat Overview and Summary

SDCV has appealed against a decision of the Administrative Appeals Tribunal (Tribunal) affirming an adverse security assessment (ASA) made by the Director-General of Security under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). The applicant sought to challenge the constitutional validity of s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), claiming that it requires the Court to act in a manner that is procedurally unfair. The applicant also argued that the Tribunal erred in its assessment of the evidence provided to it, and in not making findings in concluding that the ASA was not justified.

The Court found that the Tribunal did not err in its assessment of the evidence. The Tribunal was required to give reasons under s 43(2) of the AAT Act, but a direction under s 43AAA(5) of the AAT Act did not require closed reasons to be produced. The Tribunal did not deny procedural fairness by failing to provide sufficient information to the applicant to make meaningful submissions, as the applicant was able to answer the proposition put to him. The Tribunal was open to reach the decision based on the open and closed evidence. The Court also found that s 46(2) of the AAT Act was valid, and did not require the Court to act in a manner that is procedurally unfair.

The Court dismissed the application and made several orders, including suppression orders to protect sensitive information. The orders prohibit the disclosure of certain documents and information, and require that any disclosure be made only to certain persons. The orders also require that any access to sensitive information on the Court file be reported to the Director-General of Security or the Attorney-General of the Commonwealth. The orders are in place until certain periods have elapsed, after which the proceeding will be relisted for the Court to consider whether the orders should continue.

Orders

Orders of the court

Suppression orders

1. Subject to orders 2 and 4, there be no disclosure, by publication or otherwise, of the following information and documents (and information contained in those documents):

1.1. the Confidential Appeal Book defined by order 9 made 18 June 2020;

1.2. the Confidential Document Bundle defined by order 8 made 24 August 2020;

1.3. the ‘Read-and-Return’ documents;

1.4. the Classified Transcript defined by order 4(a) made 6 November 2020;

1.5. the First Closed Affidavit of Heather Cook affirmed 12 August 2020;

1.6. the Second Closed Affidavit of Heather Cook affirmed 5 November 2020;

1.7. the Third Closed Affidavit of Heather Cook affirmed 4 December 2020;

1.8. the Written submission in relation to the Second Closed Affidavit of Heather Cook dated 5 November 2020;

1.9. the confidential reasons of the Court (if any); and

1.10. any other matter subject to a certificate issued under ss 39A(8) or 39B(2) of the Administrative Appeals Tribunal Act 1975 (Cth)

(sensitive information).

2. Despite order 1, sensitive information may be disclosed to:

2.1. the Judges hearing the appeal;

2.2. the associates and executive assistants of the Judges hearing the appeal;

2.3. necessary officers of the Court holding at least Negative Vetting Level 2 security clearances;

2.4. the respondent and ASIO employees and affiliates;

2.5. the respondent’s legal representatives instructed in the appeal (and such other legal representatives as may be instructed by the respondent);

2.6. Justices and officers of the High Court of Australia in connection with any application for special leave to appeal, or any appeal, from orders made in this appeal;

2.7. members and officers of the Administrative Appeals Tribunal (Security Division) in connection with any aspect of this appeal that is remitted to that Tribunal;

2.8. the person or persons holding at least Negative Vetting Level 2 security clearances who are to prepare the Classified Transcript.

3. Subject to order 4:

3.1. there be no disclosure, by publication or otherwise, of the identity or any information tending to reveal the identity of the applicant and his spouse;

3.2. the applicant be known as SDCV;

3.3. the applicant’s spouse be known as SDCW; and

3.4. there be no disclosure to persons other than the parties or their legal representatives, by publication or otherwise, of matter marked “REDACTED” in [45], [47], [48], [56], [202], [208], [209], [211], [212] and [216] in the version of the Court’s reasons for judgment as published on 28 April 2021.

Provided that this order 3 does not prevent any such disclosure:

3.5. to the applicant, his legal representatives, and his spouse;

3.6. to the persons identified in order 2.

4. Despite orders 1 and 3, the respondent may disclose sensitive information or information subject to order 3 from time to time where necessary or convenient in the performance of his or her functions.

Duration of orders

5. Subject to order 6, orders 1 and 3 continue to operate until:

5.1. in relation to:

a) the documents identified in orders 1.3 to 1.8; and

b) pages 2050-2056 and 2060-2077 of the Confidential Appeal Book, including as reproduced in the Confidential Document Bundle,

and any information contained therein, 60 years from the date of this order;

5.2. in relation to all other sensitive information, 40 years from the date of this order;

5.3. in relation to the information subject to order 3, 40 years from the date of this order.

6. Notwithstanding order 5, the proceeding be relisted on 2 February 2046, or such other date as ordered by the Court, for the purpose of the parties satisfying the Court that it is appropriate to continue order 5 for the balance of the periods provided therein.

Access to documents and storage of documents

7. In the event any person (including the applicant) seeks to access any sensitive information on the Court file at any time, including after the expiration of the suppression orders made by the Court, then before otherwise dealing with the request, the Registrar or the person otherwise dealing with that request, provide reasonable notice of the request to:

7.1. the Director-General of Security (or the successor in title of the Director-General of Security); or

7.2. if there is no successor in title of the Director-General of Security, the Attorney-General of the Commonwealth (or the successor in title of the Attorney-General of the Commonwealth).

8. For the purpose of order 7, the period of notice be a period of no less than 1 week.

9. Until further order, all documents contained on the Court file containing sensitive information:

9.1. are confidential for the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) (the Rules);

9.2. are only to be accessed by people to whom the relevant information could be disclosed pursuant to these orders, or the representatives of the organisation or entity referred to in order 9.4;

9.3. must be stored inside two secure bags, with both bags marked with the matter details, the internal bag marked with the highest security classification of the information contained therein, and a copy of these orders contained inside both bags; and

9.4. may be uplifted and stored by an organisation or entity which is approved by the Registrar and is capable of storing the sensitive information in accordance with the Protective Security Policy Framework (or equivalent Commonwealth protective security policy as may be in force at the relevant time).

10. Until further order, pursuant to r 2.31(2) of the Rules, the Respondent be permitted to uplift and store the Judges’ copies of the documents referred to in orders 1.3, 1.5, 1.6, 1.7 and 1.8 when not in use by the Court in accordance with the Undertaking recorded in the orders made 6 November 2020.

11. If either party:

11.1. becomes aware that there is information that has become publicly known, otherwise than by reason of a contravention of order 1 or 3; and

11.2. knows that that information is sensitive information the subject of order 1 or information the subject of order 3,

that party cause the matter to be relisted before the Court within 5 business days, or such longer time as the Court may allow, so that the appropriateness of these orders be able to be considered by the Court.

Vacation of orders

12. Order 11 made 18 June 2020, orders 2, 7, 8, 10, 11, 12 and 13 made 6 November 2020, and order 1 made 19 November 2020 are vacated.

THE COURT NOTES THAT:

13. The Court notes that section 92 of the Australian Security Intelligence Organisation Act 1979 (Cth) prohibits the publication of the identity of an ASIO employee or affiliate. In the event that:

13.1. any document on the Court file is to be disclosed at any time to a person not listed in order 2;

13.2. a prohibition in the nature of that imposed by section 92 continues to operate at the time that disclosure is to occur, and

13.3. the ASIO employee or affiliate in question is not an ASIO affiliate who is one of the respondent’s legal representatives instructed in the appeal;

then information subject to that prohibition be redacted before the document is disclosed.

14. The Court notes that order 1 is made for the purpose of giving effect to s 46(2) of the Administrative Appeals Tribunal Act 1975, and otherwise on the grounds stated in s 37AG(1)(a) and (b) of the Federal Court of Australia Act 1976.

15. The Court notes that order 3 is made on the ground stated in s 37AG(1)(c) of the Federal Court of Australia Act 1976.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant submits that if his argument is accepted then s 46(2) could, and ought to be, read down as follows:Disclosure of documents by courts(2)If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit Court of Australia shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding, except to the extent that doing such things would preclude the court from providing a party a fair opportunity to respond to evidence on which an opposing party relies. … The underlined passage is the addition that the applicant contends reflects how the provision needs to be read, to be valid. The respondent takes issue with the correctness of the premise relied on by the applicant and submits that the approach is not supported by authority. Rather, the respondent submits that, properly read, Gageler J in Pompano and the reasons in HT do not support the proposition contended for. The respondent also directs attention to the context in which this provision exists and submits that is an appropriate consideration against which to determine the issue of practical injustice, and hence the validity of the provision. In particular, in addition to Pompano, reference is made to Gypsy Jokers Motor Cycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 and Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1. The respondent submits that in assessing the issue of practical injustice it is appropriate to consider the counterfactual situation: what would occur in this scenario absent s 46 of the AAT Act? The respondent submits that Gypsy Jokers and Pompano squarely confronted the proposition that legislation might create a regime by which a Court has access to information but the applicant does not, with neither authority suggesting that on that basis, the relevant provisions were of doubtful validity. The respondent submits that those cases, and Graham, strongly support the proposition that Ch III does not assign to the courts alone the question of balancing competing public interests and that in s 46 of the AAT Act Parliament has struck that balance in the particular context of the review of national security-related decisions. The respondent submits that if invalid then s 46(2) is wholly invalid and cannot be read down. In reply, the applicant, inter alia, accepted that in considering the issue of practical injustice the Court is entitled to consider the counterfactual situation, but submits it is not able to consider the consequence of that counterfactual. The applicant submits that it should not be assumed that any public interest immunity claim will automatically succeed. Therefore, although the Court can have regard to the fact that but for this legislative scheme there would likely be a claim for public interest immunity, the applicant submits that the Court cannot speculate, and therefore take into account, the potential outcome of that claim. The applicant submits that HT was contrary to the respondent’s proposition. The applicant submits that Gypsy Jokers and Pompano being Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 cases are of little assistance. The separation of judicial power mandated by Ch III does not apply in terms to the States, meaning that there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III. It is permissible for a State legislature to confer non-judicial functions on a State court: Pompano at [125]. The applicant submits that by their nature, such functions may call for the adoption of procedures that are more flexible than those required for the exercise of judicial power: Pompano at [195]. It follows that the fact a State law does not infringe the principles associated with Kable does not conclude the question of whether a like Commonwealth law would be valid: Pompano at [126]. Consideration

Decision

Reasons for decision

On 14 August 2018, the applicant was assessed to be, directly or indirectly, a risk to security, within the meaning of that expression in s 4 of the ASIO Act. That assessment was reflected in a certificate signed by the Director-General personally on that date. The Director-General’s certificate also stated that it would not be consistent with the requirements of security for the applicant to continue to hold his visa, and recommended that his visa be cancelled. The Director-General’s certificate was accompanied by a statement of grounds. The statement of grounds is deemed to be part of the assessment: s 37(2)(b) of the ASIO Act. Thus the certificate containing the assessment, and the statement of grounds for that assessment, comprise the ASA decision. The statement of grounds that the applicant received was noted to have sections omitted in accordance with s 38(2)(b) of the ASIO Act. That omission of information in the statement of grounds took place by reason of a public interest non-disclosure certificate signed by the Minister in his capacity as the Minister administering the ASIO Act. The statement of grounds at [2] contained a summary of the overall ASIO assessment that the applicant had “employed communications security tradecraft practices while engaging with individuals of security concern, including Syria based individuals affiliated with ISIL”. This was detailed further at [12]-[19] of the statement of grounds under the subheading “Employment of communications security tradecraft practices”. On 16 August 2018, the ASA comprising the Director-General’s certificate and the partially classified statement of grounds was furnished to the Department of Home Affairs. On 21 August 2018, the Minister cancelled the applicant’s visa upon the basis that he reasonably suspected that the applicant did not pass the character test and was satisfied that cancellation of his visa was in the national interest, exercising the discretion in s 501(3) of the Migration Act as discussed above at [44]. The applicant was furnished with the Notice of Visa Cancellation and the ASA unclassified statement of grounds on 21 August 2018. On 27 August 2018, the applicant sought review of the ASA decision by the Tribunal under s 54 of the ASIO Act. Section s 37(5) of the ASIO Act precludes the bringing of any other proceeding in respect of such an assessment or anything done in respect of such an assessment. Such a review is conducted in the Security Division of the Tribunal, in accordance with provisions specific to that Division, relevantly ss 39A and 39B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). On 2 November 2018, a revised unclassified statement of grounds was furnished to the applicant. This followed a partial revoking of the Minister’s public interest non-disclosure certificate upon the grounds that certain information was no longer prejudicial to security. The summary of the grounds for the ASA in the revised statement of grounds was that ASIO assessed that the applicant:(1)“has support for politically motivated violence (PMV) and the Islamic State of Iraq and the Levant (ISIL)” as detailed further in the revised statement of grounds at [12]-[13]; and (2)“employed communications security tradecraft practices while engaging with individuals of security concern, including Syria based individuals affiliated with ISIL”, as detailed further in the revised statement of grounds at [14]-[21].

Ratio Decidendi

Legal Principle Established

The applicant responds to the Director-General’s submissions by pointing out that not only was it not put to his wife that she was lying, but it was also not put to her that she may not know certain things about the applicant. The obligation to do at least the latter is not discharged by pointing to the manner in which the Director-General addressed that evidence. The applicant therefore submits that, while it is for the Court to decide whether the combined effect of the open and closed Tribunal reasons is that it met its obligation to give meaningful consideration to that material, such consideration is not apparent from the open reasons.Consideration The competing arguments call for a careful consideration of the open reasons first, and then of the combined reasons. The Director-General’s arguments are to be preferred, largely upon the basis that the scope for any challenge to the evidence of the priest and applicant’s wife would have been practically confined to pointing to the obvious limitation to that evidence, as reflecting no more than what the applicant chose to convey to them. Cross-examination to make such an obvious and largely irrefutable point was of little or no real value. While, as mentioned above, a beneficial reading of the Tribunal’s open reasons may not be so readily deployed in a case such as this, it is important to note that the summary of the evidence of the priest and the applicant’s wife at [13]-[14] of the open reasons reproduced above at [214] contains a concise and reasonably accurate precis of the key aspects of that evidence. In the circumstances, that was a sufficient acknowledgement of that evidence, with no suggestion that it was regarded as untruthful or otherwise not accepted as an accurate statement of what those two witnesses knew about the applicant’s state of mind and the beliefs he held, as opposed to that knowledge necessarily reflecting the complete situation. That is not an unfamiliar situation in litigation more generally. Witnesses can only depose to what they know, including what they have heard, seen, and perhaps perceived and inferred. The appropriate way to read the Tribunal’s summary of this evidence is that it was material that the Tribunal did take into account, and gave some limited weight by referring to it. In context, that evidence contributed to the conclusion that the Tribunal was not able to form a view as to whether the ASA was justified based only upon the evidence led in open session, which necessarily included the evidence of the priest and the applicant’s wife. In that context, and with the benefit of that finding, we are not satisfied that the Tribunal erred by going no further, and not making any positive finding about that evidence, given the limitations on doing so, including the very real limitations in challenging those witnesses by reference to the most salient material upon which the finding that the ASA was justified was based. On the totality of the open and closed reasons, we are satisfied that there was no error in the Tribunal going no further in the open reasons.